ORDER & FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a first amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently pending before the court are petitioner's motion for a court order, motion for stay and abeyance and motion for leave to amend his petition. For the following reasons, the motion for a court order will be denied and the motion for leave to amend will be granted. Furthermore, it will be recommended that the motion for stay and abeyance be denied.
This action was initiated when petitioner filed a habeas petition in April 2011, challenging a judgment of conviction entered in the San Joaquin County Superior Court in 2009. The original habeas petition was dismissed with leave to amend after the court determined that petitioner had named the improper party respondent. (See Dkt. No. 4.) On May 16, 2011, petitioner filed his first amended habeas petition. (See Dkt. No. 7.) Therein, petitioner asserted the following claims: (1) the Stockton Police Department violated his rights under the Fourteenth Amendment Equal Protection and Due Process Clauses; (2) ineffective assistance of counsel; (3) trial counsel mislead the court at petitioner's Marsden hearings; (4) unconstitutional search and seizure; and (5) ineffective assistance of appellate counsel. The respondent was ordered to respond to the first amended petition. (See Dkt. No. 8.) The respondent filed an answer to the first amended habeas petition on September 27, 2011. (See Dkt. No. 19.) In that answer, respondent argued that Ground 1; parts of Ground 2 (2.C. and 2.F), and Ground 5 of petitioner's first amended petition were unexhausted and, in any event, do not state colorable claims for federal habeas relief among other arguments against the granting of relief.
On October 6, 2011, petitioner filed a motion for stay and abeyance so that he could return to state court to exhaust his unexhausted claims. (See Dkt. No. 22.) Respondent opposed the motion, asserting that a stay and abeyance under Rhines v. Weber, 544 U.S. 269, 277 (2005) would be inappropriate because petitioner had unreasonably delayed in presenting his claims to the California Supreme Court and had not shown that his claims are not plainly meritless. (See Dkt. No. 23.) However, respondent noted that he had no basis to oppose stay and abeyance pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). (See Dkt. No. 23.)
On May 8, 2012, before the court ruled on petitioner's October 6, 2011
motion to stay and abey, he filed a motion to amend his petition,
together with a proposed second amended petition. Therein, petitioner
asserted that Grounds 1 and 5 were now exhausted. He also indicated
that he wished to dismiss his Ground 2.F but requested a stay so that
he could exhaust Ground 2.C of his first amended petition.*fn1
Petitioner also raised two new claims in his
second amended petition. Specifically, petitioner sought to add the
following claims: (1) his sentence constituted cruel and unusual
punishment; and (2) ineffective assistance of appellate counsel by
failing to raise the cruel and unusual punishment issue on appeal.
On June 20, 2012, the court denied petitioner's November 21, 2011 motion to stay and abey without prejudice. (See Dkt. No. 32.) The court also noted that the parties appeared to agree that the first amended petition was a "mixed" petition but that it was not clear whether a stay and abeyance was appropriate under Rhines. The court could not determine which of petitioner's claims were actually exhausted and which were unexhausted. Furthermore, the court was unable to determine whether petitioner had shown good cause for not exhausting all of his claims before filing his federal habeas petition. The court granted petitioner thirty days to file a renewed motion to stay and abey and also explained to petitioner the procedure for seeking a Kelly stay should he choose tp pursue that route. (See Dkt. No. 32.)
At that time petitioner's motion for leave to amend to file a second amended petition was also denied without prejudice. The court found that petitioner's proposed second amended petition was incomplete because it included only his two proposed new claims and addendums to Grounds 1 and 3 of his first amended petition. Accordingly, petitioner was advised that he must include all of his claims in any future proposed amended petition he sought to file.
On June 29, 2012, petitioner filed a renewed motion for stay and abeyance. (See Dkt. No. 35.) On July 27, 2012, petitioner filed a motion for leave to amend his habeas petition along with a proposed third amended petition. (See Dkt. Nos. 38 & 39.) Respondent filed oppositions to both motions. (See Dkt. Nos. 44 & 46.) Petitioner subsequently filed replies in support of his renewed motion for stay and abeyance and motion for leave to amend. (See Dkt. Nos. 54 & 55.)
II. MOTION FOR STAY AND ABEYANCE
Petitioner requests a motion for stay and abeyance pursuant to Rhines to allow him to take Ground 2.C back to state court so that it can be exhausted. In Ground 2.C of his amended petition petitioner asserts that his trial counsel was ineffective in failing to make several objections during trial. Petitioner states that he has failed to present Ground 2.C in state court due to his lack of knowledge of the legal system. He further explains that he has been transferred within the California state prison system and therefore has been unable to retain one inmate to help him with his legal work. He further claims that his Ground 2.C is meritorious and that he has been acting diligently by asking this court for permission to return to state court to exhaust that claim.
B. Respondent's Opposition
Respondent argues that the granting of a stay pursuant to the Rhines procedure is inappropriate. First, respondent asserts that plaintiff's reasons for failing to exhaust his Ground 2.C for relief are insufficient to show good cause. Furthermore, respondent claims that petitioner has failed to show good cause because he has not explained why Ground 2.C was not included in his prior petition for review filed in the California Supreme Court and was not included in his state habeas petitions. Respondent also argues that petitioner has failed to show that this unexhausted claim is not plainly meritless under either prong of Strickland ...